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Probate
Searches
Probate is the procedure by which a document (allegedly a Will)
is established judicially as a valid testamentary disposition. It is the
process by which a proper court declares the will to be a valid testamentary
disposition, or the system provided by law for transferring property of
a decedent to successors.
Probate court is a court having jurisdiction over the probate of
wills, the grant of administration, and supervision of the management/settlement
of the estates of decedents, including the collection of assets, allowance
of claims, and distribution of the estate. In some states, the probate
courts also have jurisdiction over the estates of minors, including the
appointment of guardians and settlement of their accounts, and the estates
of lunatics, habitual drunkards, spendthrifts, as well as adoptions.
(These areas will be talked about later).
Probate estate includes the decedent's assets that they own by themselves
as well as with others that are subject to being processed by the Court.
Informal Probate is an unsupervised probate proceeding. The proponent
of the will is required to produce the will and the witnesses that are
living before the court. The will is proved after the witnesses have given
testimony under oath.
Formal Probate is a supervised probate proceeding by the probate
court in the administration of an estate, with or without a will.
Probate is generally filed in the county/parish in the state where
the decedent resided. This is not always the same place where the person
died. If the person owned/ran a business that was located in a different
county/parish, or even a different state, once the original probate was
started, a copy of the will and death certificate would need to be filed
in that county/parish as well.
In modern times, it is not always necessary to file probate, particularly
if the entire estate is under $10,000. There are, of course, the state
and federal estate taxes that would still need to be paid.
The examples that I am going to list are used in the more 'modern'
probate court, and I am using them to show just what type of information
they hold for you. You may not find this information in 'older' probates
from back in the 1800s, but it will give you an idea of just what you could
find, even if they don't have these particular methods. The examples are
basically the same for both the formal and informal probate proceedings
so I won't differentiate.
The
Last Will and Testament
This is probably the most important piece in the entire probate
packet/file. Not all probates will have a will, but in those that do, you
will find a great deal of information here as well. The Last Will and Testament
will give out the deceased's final wishes with regard to his estate. Generally,
a spouse's name is given, as well as any children (dead or living). It
may also give names of people (friends, neighbors, etc) that may receive
a 'special' gift.
In some rare occasions, it may also say who is NOT going to receive
anything (disinherited child, etc) as well as possibly the reason why.
It may also list a person that they wish to have take care of a
young child (Guardian) in the event there is no living spouse.
The Will may also give 'special' instructions concerning a family
member -- such as being able to live in the family home until their death
(life estate) or when a person is to receive their inheritance, etc.
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Death
Certificate
This is filled out at the time of death, and also has quite a lot
of information on it. Besides the name, date of birth, date of death, and
address of the deceased, it may also have some of the following information:
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Place of Birth.
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Place of Death.
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Deceased's occupation
and social security number (if applicable).
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Spouse information
(name, address, etc) if applicable.
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Parents names
and addresses.
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Cause of death
(i.e. accident, natural causes, etc.)
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Diagnosis of death
(if autopsy is done, results of that can also be listed).
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Name of medical
examiner.
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Funeral home body
released to.
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Cemetery for interment.
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Application
For Administration
This particular paper will probably have the most information on
it, since it gives the background on the deceased. The next of kin, or
the personal representative generally fills it out if there is a will in
existence. On this application, you will find the following information:
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Name of the deceased.
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Date of Birth
of the deceased.
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Date of Death
of the deceased.
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County in which
the deceased resided.
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State of residence.
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Mailing address
of the deceased.
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This application will also ask for the following information:
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What is the interest
in the estate of the person filing the application?
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Whether there
are other proceedings pending in that state or elsewhere.
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An estimated gross
value of the estate.
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Did the deceased
receive any assistance (medical, family care, or a patient/inmate of a
county hospital or institution?
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Did the deceased
owe money to the state?
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Spouse's name
as well as assistance information.
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Did the deceased
have a will and the date of the will, if it is attached, or what the current
status is, who the personal representative is, and if there is a trustee?
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It
will also list the names, relationship, last known address and date of
birth (if person is a minor), of any interested persons or heirs. In this
list will also be persons that would be considered 'incompetent', people
in the military, as well as 'guardians of estate'.
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Proof
of Heirship
This
is filed by the personal representative or the person filing the probate
papers and gives the following information:
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Did a spouse survive
the deceased?
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Names of all children
(living, dead, natural or adopted).
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If the child is
deceased, it should also give a date of death if possible.
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If there were
deceased children, were they survived by children (living or dead, natural
or adopted), with the names given and an indication of date of death, if
applicable.
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If there is a
surviving spouse, are all the children listed also the spouse's, giving
details of the relationship if they were not (i.e. stepchildren, adopted,
etc).
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If no surviving
children, then the surviving parents' names are asked for. If the parents
are also deceased, then the names of the deceased's brothers and sisters
(living or dead, natural or adopted) are listed, with a date of death,
if applicable.
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If brothers and
sisters are all deceased, then it will ask for any living children that
they may have had.
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If there are no
living survivors listed in the categories above, the 'other' relatives
are listed with the relationship stated (other: aunts, uncles, cousins,
etc).
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Inventory
The
inventory gives a value to the deceased's estate -- assets, liabilities
and total worth, listing everything individually with a value. |
Final
Accounting
This gives the total worth, with the assets listed separately from
property, dividends, interest, etc. It will also list the expenses of the
estate, such as bills owed at the time of death, funeral expenses, taxes,
etc. The bottom line for this particular form is exactly what is available
to give out to the heirs. It will also list the names and addresses of
the heirs, their relationship to the deceased and date of birth if a child
or incompetent. |
These are just a few types of information that can be found in a
probate packet. It can hold a bounty of information or it can hold a 'dry
well'. In any case, don't overlook a probate court file, it MAY just hold
the 'key' to your family.
Following
is additional information that may also be found in the Probate Courts.
Again, please keep in mind that this information is geared toward more
modern day records of our judicial system, but depending on how far back
you are searching, you may come across this information as well.
Adoption
Any adoptions, whether private or through an adoption agency, are
usually put through the court systems by way of the Probate Court. With
the adoption process, there are many papers that are filed, including a
'request' for adoption, filed by the 'new' parents, a paper that will state
that the birth parents, or 'biological' parents give up their parental
rights, any 'professional' reports, such as psychological and/or medical
reports by an agency, as well as the 'real' birth certificate.
By 'real' birth certificate, I mean the birth certificate that names
the biological parents' names, hospital where the baby/child was born,
etc. When the adoption is final, the court will request that the State
Vital Records Department issue a 'new' birth certificate, with the names
of the 'adoptive' parents rather than those of the biological parents.
In years past, once an adoption was final, the entire case packet,
all the paperwork, including the 'real' birth certificate, was sealed.
This means that it was made unavailable' to anyone that may be searching
for their real parents. Laws have changed and more and more states have
now adopted legislature that will allow some types of information to be
released. Some examples of this information are:
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Non-identifying
social history.
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Medical / genetic
information about birth parents and members of their families including
routine health information and any known hereditary or degenerative diseases.
(i.e. Tay Sach's, Tourettes, severe allergies, deformities, heart conditions,
etc).
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Most recent names
and addresses of the birth parents that are in the Health and Family Services
files.
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A copy of the
'impounded' (real) birth certificate, which was on record prior to the
time of adoption.
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The birth parents are required to provide medical/genetic information
to the court at the time the parental rights are terminated. Updated medical/genetic
information can be added at any time.
The birth parents DO have the right to have on file, in that particular
folder, a statement (notarized) stating their wishes as to being contacted
by the child/adult that was placed for adoption.
If the above information is not enough for what the person is looking
for, or if the person is actively searching for their birth parents, after
proving that they have searched in all possible places for information,
they can petition the court system to have their adoption file 'opened'
or 'unsealed' in order to obtain the information they are seeking.
The birth parents MAY revoke any statement they have on file as
far as release of information at any time by writing to the proper authorities.
At this time, a lot of states do not have any statutory provision
for birth parents who wish to find their birth children.
These laws also cover those individuals who were raised in foster
care and whose birth parents terminated parental rights.
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Paternity
Issues
Another type of information that is kept in the Probate Court area
is that of paternity issues. Again, as in the Adoptive files, forms and
legal documents must be filed against the 'alleged' father that will have
the court 'order' him to undergo blood testing in order to try and prove
the issue of whether or not the man is the biological father of the child.
Once paternity is decided, then the court will generally try to
get the father to make sure his child is take care of. |
Guardianship
Cases
These are for the instances of an 'incompetent' person, a person
under the age of majority, or a person who is in a state institution. Another
term for a person needing a guardian is a 'ward'.
Forms must be submitted to the court by a minimum of three people
for someone who is considered 'incompetent' or 'insane', while a child
who is left without parents through their death, is given a guardian due
to being under the age of majority or through the dictates of a Last Will
and Testament.
The person who is selected to be the guardian must file the necessary
paperwork with the Probate court, and prove that they are capable of taking
care of the person as instructed, either by the Will or by the Probate
court.
The guardian must also keep record of all expenditures that are
made with regard to their 'ward', whether for clothing, institutional fees,
medical care, or other expenses. These expenses must be reported to the
Probate court every year so the court can make sure that the ward is being
taken care of properly and the money not mishandled. Should the Court feel
that the guardian is not taking care of their ward in a correct manner,
they can file to 'dismiss' the guardian, and choose another to replace
them, or make the person a 'ward of the State'.
The Guardian is the person who will make all the decisions for their
'ward', regarding health; proposed admission to a nursing home, if necessary;
life support, etc. The Guardian must also make a report to the court on
the condition of the person, including location, health condition, any
recommendations for change in various treatment, services, living arrangements,
as well as a statement of whether the person is in the least restrictive
environment that is consistent with their needs. This is also true for
wards that are under 'protective placement'.
Keep in mind that most people will associate a guardian with a person
who has no parents, or in a state institution, or not able to take care
of their 'legal' obligations, guardians are also used for people who are
in situations such as abusive homes, or other situations where they may
be subjected to violent circumstances. In these instances, it is up to
the Guardian to make sure that the wards are properly taken care of, and
that no harm comes to them. They must also submit yearly reports to the
necessary protective services department, regarding their charge.
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(The above
information is reprinted with the permission of its' author and is subject
to current copyright law).
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Trientje's
Testate Tidbits ~ a downstate probate from the 1920s |
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Cindy's
List ~ Wills & Probate |
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Probate
Records ~ Illinois Archives |
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1856
Illinois Probate Manual |
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Understanding
a Will Written Before 1858 |
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Death-bed
or Non-cupative Wills |
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Understanding
the Jargon |
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How
to Read Probate Records |
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Please
let me know if you find a broken link,
or
if you have a link to add.
This Page
Updated:
Wednesday, 12-Mar-2008 14:02:37 EDT
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